Law and the Judiciary

Law and the Judiciary

During the period of the Ottoman Empire, a dual judicial system that distinguished between religious and secular matters developed in Libya and other subject countries. For Muslims, the majority of cases--those involving personal status, such as marriage and inheritance--fell within the jurisdiction of religious courts, which applied the Maliki interpretation of Islamic law--the sharia. The courts were organized into both original jurisdiction and appellate levels and each was directed by a qadi, an Islamic religious judge. Secular matters--those involving civil, criminal, and commercial law--were tried in a separate court system. Laws covering secular matters reflected Western influence in general and the Napoleonic Code in particular. Non-Muslims were not under sharia. For example, the Jewish minority was subject to its own religious courts. Europeans were subject to their national laws through consular courts, the European nations having secured capitulary rights from the Turks.

The colonial powers that ruled Libya after the disintegration of the Ottoman Empire maintained the dual judicial structure. After Libya achieved independence, however, an attempt was made to merge the religious and secular legal systems. The merger, in 1954, involved the subordination of Islamic law to secular law. Popular opposition, however, caused the reestablishment of the separate religious and secular jurisdictions in 1958.

The 1969 constitutional proclamation provided little guidance for the postrevolutionary judiciary. Equality before the law and presumption of innocence were stipulated, and inheritance was made subject to sharia. The RCC was given the power to annul or reduce legal sentences by decree and to declare general amnesties. Also stipulated was the independence of judges in the exercise of their duties, subject to law and conscience. It was the RCC, however, that promulgated laws.

Judicial independence and the due process of law were respected during the first decade of the postrevolutionary regime, except when political crimes were involved. After 1979, however, the situation deteriorated in direct proportion to the growth of the revolutionary committees.

Qadhafi and other RCC members believed that the separation of state and religion, and thus of secular and religious law, was artificial--that it violated the Quran and relegated sharia to a secondary status. Two postrevolutionary bodies dealt with this situation. The Legislative Review and Amendment Committee, composed of Libyan legal experts, was created in October 1971 to make existing laws conform to sharia. The ultimate aim was for Islam to permeate the entire legal system, not only in personal matters, but also in civil, criminal, and commercial law. The Higher Council for National Guidance was created the next year. Among its philosophical and educational duties was the presentation of Islamic moral and spiritual values in such a way that they would be viable in contemporary Libyan society.

Application of Islamic legal tenets to contemporary law and society presented certain difficulties. There was, for example, the question of the proper contemporary meaning of traditional Islamic physical punishments, such as the severance of a hand for the crime of theft. Debates arose over whether severance should mean actual amputation or merely impeding the hand from future crime by removing need and temptation. The most literal interpretations were adopted, but their actual imposition as legal punishment was very much restricted by exemptions and qualifications, also based on Islamic tenets. A thief's hand would not be amputated, for example, if he truly repented of his crime or if he had committed the theft to feed a starving family. Indeed, numerous observers have reported that the more extreme physical punishments are rarely, if ever, performed.

Court Structure

With the acceptance of the primacy of Islamic law, the dual religious-secular court structure was no longer necessary. In November 1973, the religious judicial system of qadi courts was abolished. The secular court system was retained to administer justice, but its jurisdiction now included religious matters. Secular jurisprudence had to conform to sharia, which remained the basis for religious jurisprudence. In 1987 the court system had four levels: summary courts (sometimes referred to as partial courts), courts of first instance, appeals courts, and the Supreme Court.

Summary courts were located in most small towns. Each consisted of a single judge who heard cases involving misdemeanors. Misdemeanors were disputes involving amounts up to Libyan dinar (LD) 100. Most decisions were final, but in cases where the dispute involved more than LD20 the decision could be appealed.

The primary court was the court of first instance. One court of first instance was located in each area that formerly had constituted a governorate before the governorates as such were abolished in 1975. Courts of first instance heard appeals from summary courts and had original jurisdiction over all matters in which amounts of more than LD100 were involved. A panel of three judges, ruling by majority decision, heard civil, criminal, and commercial cases and applied sharia to personal or religious matters that were formerly handled by the qadi courts.

The three courts of appeals sat at Tripoli, Benghazi, and Sabha. A three-judge panel, again ruling by majority decision, served in each court and heard appeals from the courts of first instance. Original jurisdiction applied to cases involving felonies and high crimes. Sharia judges who formerly sat in the Sharia Court of Appeals were assigned to the regular courts of appeals and continue to specialize in sharia appellate cases.

The Supreme Court was located in Tripoli and comprised five chambers: civil and commercial, criminal, administrative, constitutional, and sharia. A five-judge panel sat in each chamber, the majority establishing the decision. The court was the final appellate body for cases emanating from lower courts. It could also interpret constitutional matters. However, it no longer had cassation or annulment power over the decisions of the lower courts, as it did before the 1969 revolution. Because there was a large pool of Supreme Court justices from which the panel was drawn at a given time, the total number of justices was unfixed. All justices and the president (also seen as chairman) of the court were appointed by the GPC; most likely the General Secretariat made the actual selections. Before its abolition, the RCC made Supreme Court appointments.

Other Juridical Organs

Some bodies involved in the administration or the enforcement of justice were situated outside the regular court system. For example, the Supreme Council of Judicial Authorities was an administrative body that coordinated and supervised the various courts. It also established the salaries and seniority rules for judges, whom it could transfer or retire. The Council of State, much like the French Conseil d'Etat, delivered advisory legal opinions for government bodies regarding draft legislation and other actions or regulations it was contemplating, as well as contract negotiations in which it might be involved. It also included an administrative court to provide relief in civil cases involving arbitrary or otherwise unfair administrative decisions.

The People's Court

In 1971 a people's court was established to try members of the former royal family, the prime ministers and other officials of the monarchical regime, people accused of rigging elections in behalf of that regime, and journalists and editors accused of corrupting public opinion before the revolution. A member of the RCC presided over the court, which also included one representative each from the armed forces, the Islamic University, the Supreme Court, and the police. Trials and retrials continued at least as late as 1975, when former King Idris was sentenced to death in absentia. An amnesty for some of those sentenced in 1971 was granted by the RCC in 1976.

With matters pertaining to the former monarchical regime having been resolved, it appeared that several people's courts were being used in the late 1970s to try crimes against the postrevolutionary state. In January 1977, a new people's court was formed to try political detainees. The Decision on the Protection of the Revolution, issued December 11, 1969, generally defined crimes against the state as those involving attempted forcible overthrow of the ruling regime or otherwise rallying opposition to it. Such crimes may be referred to a people's court, but plots and conspiracies against the state are usually referred to special military courts created on an ad hoc basis for that purpose. The military courts and the people's courts have been criticized for violating the legal rights of defendants in political cases.

The Revolutionary Courts

In the early 1980s, a separate and parallel judicial system emerged that abrogated many procedures and rights ensured by the traditional court system. With the regime's blessing and encouragement, revolutionary committee members established revolutionary courts that held public, often televised, trials of those charged with crimes against the revolution. A law promulgated in 1981 prohibited private legal practice and made all lawyers employees of the Secretariat of Justice. In these courts, the accepted norms--such as due process, the right to legal representation, and right of appeal--were frequently violated. According to Amnesty International, Libya held seventy-seven political prisoners in 1985, of whom about eighteen were held without trial or remained in detention after having been acquitted. Others allegedly died under torture while in the custody of members of the revolutionary committees. Libya also sanctioned murder of political opponents abroad, a policy reaffirmed on March 2, 1985, by the GPC.

Unions and Syndicates

Immediately after the revolution, the role that labor unions, professional syndicates, and other organized interest groups would play in the new society was in doubt. Regarding labor unions, for example, Qadhafi stated in a November 4, 1969, speech in Tripoli: "There will be no labor unions . . . . Laborers and the revolution are an indivisible entity. There may be certain labor organizations, but only for ordinary administrative duties." On November 30, however, Qadhafi stated in an interview that there was no thought of abolishing labor unions and student organizations, but they must "truly represent their groups with a revolutionary spirit. We do not accept intermediaries between the revolution and its working forces."

After the revolution, most prerevolutionary interest groups were abolished and new ones created. Functioning within the framework of the ASU at first, and the GPC after 1976, the new interest groups lacked autonomy and played an insignificant political role. In January 1976, the ASU National Congress emphasized that political activity was to be solely within the purview of popular congresses. After 1976 labor unions and other associations performed only administrative duties pertaining to the occupations or nonpolitical activities of their members. Strikes have been prohibited since 1972. In Qadhafi's ideology, workers should be transformed into partners; to work for wages is a form of slavery. Therefore, he urged workers to take over companies, factories, and schools and to set up people's committees to manage production and decide priorities. In theory, this system would make labor unions unnecessary.

In fact, however, unions continued to exist. In the mid-1980s, there were some 275,000 members belonging to 18 trade unions, which together formed the Tripoli-based National Trade Union Federation. In addition, separate syndicates existed for teachers, engineers, physicians, lawyers, and other professionals. Other groups represented women and students. The GPC included components of all these units. Although Libyan interest groups did not have a real political role similar to that such groups play in the Western tradition, their responsibilities included contributing to the cultural revolution, raising the revolutionary consciousness of their members, and mobilizing support for national leaders and their policies.

Before the Revolution of 1969, organized labor played a significant role in opposing the monarchy. Yet the union movement was too young to be established firmly, and it had no connection with the military group that overthrew the king. Consequently, unions and most other interest groups have not resisted the limitations imposed within the postrevolutionary framework and the concomitant lack of a real political role. Students have proved an exception, however. Early postrevolutionary enthusiasm for the RCC quickly changed to opposition as a significant number of students reacted against restrictions on the autonomy of student leaders.

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